John Cheek gave the Clinton Township Fire Department and firefighter Timothy Duncan permission to use the outside spigot at his Subway franchise as a source of water for a training exercise. He explained that he had never used the spigot, but if they could figure out how to turn it on, they were welcome to use it. Duncan turned it on but did not monitor it, even though he apparently knew that it was leaking and spraying water outside the rear [kitchen] entrance of the restaurant.
When Cheek attempted to drag a bag of garbage to the dumpster, he fell on ice as he was backing out of his doorway. It turned out that the spraying leak from the water spigot had created a large sheet of ice at the rear entrance. Noting that under the testimony elicited, Duncan had reason to know of the dangerous condition while Cheek was not apprised of the problem, the Court of Appeals agreed with the lower court that Duncan was not entitled to summary disposition. The jury would have to evaluate the testimony of Cheek, Duncan and the other witnesses and assess whether Duncan's behavior constituted "gross negligence" under the governmental immunity statute.